Client’s Duties under Heath and Safety

The Legislation

On 1 October 2023 the Building etc (Amendment) (England) Regulations 2023 came into force as the new regulatory regime introduced under the Building Safety Act 2022. Any project requiring a new Building Regulations application, including domestic house extensions, will now require two ‘principal duty holders’ to be appointed: the Principal Designer and the Principal Contractor.

These duty holder titles which were first introduced under the Construction (Design and Management) Regulations 2015, but the duties and responsibilities for the Principal Designer under CDM are markedly different to those now required of the Principal Designer under the Building Regulations.

From a client’s perspective, the duty holders are now responsible for ensuring compliance with site health and safety during construction and ensuring the building regulations have been complied with when you take occupation of the completed project.

These are significant responsibilities and clients need to make sure they appoint competent persons.

The Practicalities

Immediately prior to the completion of a project all dutyholders including the client will have to sign a declaration that they have complied with their respective duties. For clients, this will be that, to the best of their knowledge, the work complies with all applicable requirements of the Building Regulations.

While the responsibility for the design and construction falls on the contractor and designer, the client will be expected to have appointed persons competent in the role.

How do clients ensure compliance?

The simple answer is to employ only qualified designers on your project. Chartered membership of professional bodies such as the RIBA, RICS or CIAT should be seen as the minimum qualification for a principal designer.

Architectural consultants and interior designers are not formally recognised as having professional qualifications or competence relating to construction or building regulations submissions so care must be taken if you are employing them in this role.

Possible consequences of non-compliance

The impacts of a physical project could be long lasting. What if fire protection measures were not complied with and there were serious consequences for a future owner or occupier? Could a client be liable if they had used unqualified designers in the preparation of the plans?

A building regulations completion certificate does not require the building regulations authority to check the competence of those involved. This aspect of the regulations are largely self regulating so it may be too late by the time you discover that despite many years experience they didn’t have any formal qualification. Thankfully, it isnt something you need to worry about if you’ve appointed a qualified architect.

The dangers

In some roles the legislation is clear. For example, only Corgi registered gas engineers can work on boilers and certify the work is safe. Despite the changes outlined above, there is no similar requirement for building regulations submissions.

Ideally, the function of a building regulations submission would be regulated but the government have stopped short of this. In time, if everyone complied with their duty, there would be regulation ‘by the back door’ as only qualified competent professionals would be submitting building regulations applications.

In reality, without clear boundaries and competence mandated, there’s going to be a continued grey area where clients are unaware of their duties and could end up exposed. This hasn’t been widely reported and, in our view, it’s unfair to place a potential liability on homeowners without also prohibiting unqualified designers from offering their services to the public.

Duty Holders – Role of the Client

The client is identified as any person for whom the project is carried out, usually the homeowner. They will have several responsibilities mandated by the BSA, in addition to their current obligations. Generally, it will be the client’s role to establish the direction of the project, ensuring that an environment is created that adheres to the Building Regulations.

Their duties will include:

• Making suitable arrangements for the planning, management and monitoring of a project and ensure is compliant with the relevant requirements of the building regulations and that they are maintained throughout the project
• Ensuring that the individuals/organisations who are employed are competent to carry out the work which they have been contracted to undertake
• Providing building information as soon as is practicable to every designer and contractor on the project
• Communicating with any other person working on or in relation to a project to the extent necessary to enable any person with a duty or function under these Regulations to fulfil that duty or function

If you’ve appointed a designer on the project, make sure they’ll sign the ‘Principal Designer Declaration’ prior to completion, are competent to do so and can advise you as the project progresses.